BILL ANALYSIS Ó
SB 600
Page 1
SENATE THIRD READING
SB
600 (Pan)
As Amended May 18, 2015
Majority vote
SENATE VOTE: 30-9
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|Committee |Votes|Ayes |Noes |
| | | | |
| | | | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Judiciary |8-1 |Mark Stone, Alejo, |Wagner |
| | |Chau, Chiu, Cristina | |
| | |Garcia, Holden, | |
| | |Maienschein, | |
| | |O'Donnell | |
| | | | |
| | | | |
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SUMMARY: Amends the Unruh Civil Rights Act (Unruh Act) to
expressly prohibit discrimination by business establishments on
the basis of citizenship, primary language, and immigration
status. Specifically, this bill:
1)Includes citizenship, primary language, and immigration status
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among the list of characteristics for which discrimination is
specifically prohibited under the Unruh Act.
2)Provides that verification of immigration status and any
discrimination based upon verified immigration status, where
required by federal law, shall not constitute a violation of
the Unruh Act.
3)Provides that nothing in this bill shall be construed to
require the provision of services or documents in a language
other than English, beyond that which is otherwise required by
other provisions of federal, state, or local law, including
Civil Code Section 1632.
4)Finds that these provisions do not constitute a change in, but
are declaratory of, existing law. Further states that it is
not the intent of the Legislature in amending the Unruh Act to
affect the protected status of any other classification,
whether or not expressed in the Act itself.
FISCAL EFFECT: None
COMMENTS: This bill, co-sponsored by the California Civil
Rights Coalition (CCRC) and the Mexican American Legal Defense
Fund (MALDEF), seeks to expand the list of protected
characteristics in the Unruh Act to specifically prohibit
discrimination on the basis of immigration status, primary
language, and citizenship. Proponents contend that this bill is
needed to ensure that our state laws clearly and comprehensively
protect against discrimination based on these characteristics.
Background on the Unruh Act. Civil Code Section 51, the Unruh
Civil Rights Act, is considered one of the cornerstones of
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antidiscrimination law in California, and specifically prohibits
business establishments from denying equal accommodations and
services on the basis of sex, race, color, religion, ancestry,
national origin, disability, medical condition, genetic
information, marital status, or sexual orientation. The true
scope of protection under the Unruh Act is actually even broader
than these categories because the California Supreme Court has
consistently interpreted the Unruh Act in an expansive way,
holding that it is meant to cover all arbitrary and intentional
discrimination by business establishments.
In a landmark 1970 case, the Court held that the Unruh Act
forbids a business establishment that is generally open to the
public from arbitrarily excluding a prospective customer (In re
Cox 3 (1970) Cal.3d 205). In a detailed analysis of the Unruh
Act, the Court determined the "past judicial interpretation of
the act, and the history of legislative action that extended the
statutes' scope, indicate that identification of particular
bases of discrimination - color, race, religion, ancestry, and
national origin... is illustrative rather than restrictive.
(Emphasis added.) Although the legislation has been invoked
primarily by persons alleging discrimination on racial grounds,
its language and its history compel the conclusion that the
Legislature intended to prohibit all arbitrary discrimination by
business establishments." (Id. at p. 216.)
The Court has also concluded, however, that prohibited
discrimination, if unspecified, must be similar to the kinds of
characteristics listed in the statute. Thus, in rejecting
coverage of discrimination on the basis of economic status, the
Court held that the Unruh Act prohibits discrimination based on
"the classifications listed in the Act... or similar personal
traits, beliefs, or characteristics that bear no relationship to
the responsibilities of consumers of public accommodations."
(Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142,
1169.)
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This bill seeks to ensure that discrimination based on
immigration status, citizenship, or primary language spoken is
prohibited under the Unruh Act. According to the author and
sponsors, enough ambiguity exists about whether the Unruh Act
protects against discrimination based on immigration status,
citizenship, and primary language that it is worthwhile to
clarify that the Act specifically prohibits discrimination on
those bases. Co-sponsor MALDEF states: "It helps no one - least
of all the businesses required to comply with the Unruh Act - to
require Californians to parse court opinions to reach a
debatable conclusion about how to comply with the
law...California should provide clear notice to business
proprietors that they [should not make] the erroneous conclusion
that they may discriminate in public accommodations."
Because citizenship, immigration status, and language are
changeable characteristics, and sometimes relevant consideration
under other law, proponents are apparently concerned that some
businesses may conclude that these characteristics are not
similar to those characteristics currently specified in the
Unruh Act, and are instead more like the characteristic of
economic status which was determined by the Harris court to not
be a prohibited form of discrimination under the Act.
A. Citizenship and primary language. With respect to
citizenship and language, proponents may be concerned that
previous court cases may lead some California court to conclude
in the future that these characteristics are too different from
existing Unruh protected characteristics and therefore not
protected from discrimination under the Unruh Act. In some
analogous contexts, the U.S. Supreme Court has ruled that
national origin and race are distinct from citizenship and
primary language. For example, in Espinoza v. Farah Mfg. Co.
(1973) 414 U.S. 86, the Court held that while Title VII of the
Civil Rights Act of 1964 prohibited discrimination on the basis
of national origin, it does not prohibit discrimination on the
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basis of citizenship. The Court commented that "national
origin" on its face refers to the country where a person was
born or from which the person's ancestors came, and that the
Congressional record only supported this interpretation. (Id. at
pp. 88-89.) Consequently, the Court concluded that there was no
reason to believe Congress intended for the term "national
origin" to have a broader scope. (Id. at p. 91.)
In Hernandez v. New York (1991) 500 U.S. 352, the Court held
that while the constitution protects individuals from
discrimination based on their race in jury selection, that
protection does not include protection from discrimination based
on the language spoken by that individual. In that case, the
Court stated that the prosecutor's dismissal of jurors based on
the language they spoke was "race-neutral," and even if it
resulted in a disproportionate removal of Latinos from juries,
that did not rise to a per se violation of the Equal Protection
Clause. (Id. at p. 361.)
Where there is a Supreme Court precedent establishing that
citizenship and language are distinct from nationality and race,
and that prohibiting discrimination based on the latter does not
prohibit discrimination based on the former, the Unruh Act's
prohibition of discrimination on the basis of nationality and
race can arguably be said to not impliedly also prohibit
discrimination on the basis of citizenship or language spoken.
It is also important to note that in both Espinoza and
Hernández, the Court commented that permissible discrimination
based on citizenship and language may be used as a pretext for
impermissible discrimination on the basis of national origin or
race. According to proponents, this bill would help prevent
this kind of pretextual discrimination by clarifying that
citizenship and language discrimination are specifically
prohibited by the Unruh Act.
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An argument can also be made that language discrimination is
already prohibited by the Unruh Act when it is pretext for
discrimination based on national origin. Such an argument was
made by Governor Brown in his veto message of SB 111 (Yee) of
2011. As heard by the Assembly Judiciary Committee, SB 111
would have made it a violation of the Unruh Civil Rights Act to
adopt or enforce a policy that limited or prohibited the use of
any language in a business establishment, unless the language is
justified by a business necessity and notification has been
provided of the circumstances and the time when the language
restriction is required to be observed, and of the consequences
for its violation.
SB 111 was ultimately vetoed by Governor Brown, who stated:
"Existing law already prohibits businesses from limiting the use
of language without a business necessity. In addition, existing
law specifically protects against discrimination based on
language when it is used as a pretext to discriminate against
persons due to their national origin." This bill would clarify
that under the Unruh Act, discrimination based on language is
specifically prohibited, whether the discrimination is direct or
used as a pretext for national origin discrimination.
B. Immigration Status. While no case has directly held that
immigration status is covered within Unruh, it would appear
consistent with existing law which prohibits arbitrary
discrimination based upon personal characteristics. (Harris v.
Capitol Growth Investors XIV, supra, 52 Cal.3d at p. 1169.) In
addition, existing law prohibits discrimination based upon
national origin, of which immigrants are a subset. In order to
ensure protection against impermissible discrimination based
upon the category of "national origin," discrimination against
members of any subset of that category must also be prohibited
under existing law. This concept is supported by the history of
the Unruh Act, and by analogous case law. (See Vaughn v. Neu
Proler International (1990) 223 Cal.App.3d.1612, 1617, at fn.
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2.)
As with language discrimination, an argument has been made that
discrimination based on immigration status is already prohibited
by the Unruh Act when it is pretext for discrimination based on
national origin. In 1999, AB 407 (Cedillo) sought to add
discrimination based on immigration status to the list of
characteristics protected under the Unruh Act. That bill was
ultimately vetoed by then-Governor Davis, who stated in his veto
message his belief that "all residents of California, regardless
of immigration status, are already protected from discrimination
based in their personal characteristics, specifically ethnic
origin and nationality." Accordingly, this bill would further
clarify that the Unruh Act specifically protects against
discrimination based on immigration status, whether occurring
directly or used as a pretext for national origin
discrimination. In light of ongoing debate about immigration
reform and the President's recent deferred action programs, the
author and sponsor contend such clarification to the Unruh Act
is warranted. In support, CCRC states: "We can, however, limit
the impacts of the increasing demonization of immigrants in
public discourse by enacting sensible legislation like SB 600."
Provisions to respect existing law on verification of
immigration status and translation requirements. This bill
currently provides that verification of immigration status and
any discrimination based upon verified immigration status, where
required by federal law, shall not constitute a violation of
these provisions. In addition, this bill clarifies that none of
its provisions shall be construed to require the provision of
services or documents in a language other than English, beyond
that which is otherwise required by other provisions of federal,
state, or local law, including Civil Code Section 1632. This is
similar to language in SB 111 that also specified that this bill
was not to be construed to impose a duty on any business
establishment to provide customer service in a particular
language unless that duty is otherwise required by law. By
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adding these qualifications, this bill seeks to avoid any
unintended conflicts with existing laws on verification of
immigration status and translation of documents into languages
other than English.
Analysis Prepared by:
Anthony Lew / JUD. / (916) 319-2334 FN: 0001108